SZGCL v Minister for Immigration and Multicultural Affairs [2006] FCA 1690

FEDERAL COURT OF AUSTRALIA

SZGCL v Minister for Immigration and Multicultural Affairs [2006] FCA 1690 SZGCL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 1597 OF 2006

SIOPIS J

15 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1597 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGCL

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 15 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1597 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGCL

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 15 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against the judgment of a Federal Magistrate delivered 2 August 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 28 February 2005 that was handed down on 22 March 2005. The Tribunal affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of Jordan. Before the Tribunal, the appellant claimed to have a well‑founded fear of persecution because of his religion. He is a Roman Catholic. The appellant claims to have organised Sunday school for Roman Catholic children and to have been questioned by intelligence officers on four occasions. He claims to have faced discrimination in employment, education, and generally, due to his Christian faith. 3 The appellant has also made claims on the basis of membership of a particular social group, namely, his family, and says his brother was involved with a woman who committed suicide because he had ended the relationship. Her family blamed his brother and threatened the appellant's family. He said that the woman's family was influential with the police and that after his brother had been sentenced to two years imprisonment for causing the woman's death, he had fled Jordan. The appellant had been interviewed from time to time by police in Jordan for a period of three years, after his brother had fled. 4 The Tribunal found that the appellant was not discriminated against because of his religion. On his own evidence, the appellant admitted that, contrary to his claim, he had gained an education and employment. The appellant even worked for the Department of Education at a government school. There was no evidence to suggest that the appellant was prohibited from earning a living. The Tribunal could not be satisfied that the appellant had faced discrimination amounting to persecution for the purposes of the Convention, nor could it be satisfied that he would face harmful treatment in the reasonably foreseeable future for his religious beliefs. Questioning by the police about organising Sunday school did not amount to serious harm under s 91R of the Migration Act 1958 (Cth) ('the Act') and, therefore, his fear was found to be remote and not well‑founded. Independent country information indicated that Roman Catholics are allowed to practice freely, with Roman Catholic instruction available in public schools and that, generally, relations between Roman Catholics and Muslims were amicable in Jordan. 5 Pursuant to s 91S of the Act, the Tribunal disregarded the appellant's claims in regard to his brother's involvement with the woman who suicided, and the problems arising from that involvement. The Tribunal could not be satisfied that the appellant had a well‑founded fear of persecution. 6 In his application for judicial review before the Federal Magistrate, the appellant relied upon three grounds. Firstly, he claimed that he was misunderstood in some of his comments and replies during the Tribunal hearing. Secondly, he stated that he believed that the International Religious Freedom Report 2004 to which the Tribunal referred as independent country information was: '…written by people who sit down reading law books and the constitution of Jordan which is totally different from what life in Jordan is. They never see people they just judge by reading. If you read the constitution of former U.S.S.R. you will get the idea that this was the best country to live in but it wasn't.' 7 Thirdly, the appellant said that he thought some of the written evidence, he had provided earlier, would be considered. 8 The appellant also made an amended application dated 28 July 2005, in which he said that he believed the Tribunal underestimated the danger he would be living in, if he returned to Jordan. He would be hunted and harassed. 9 The Federal Magistrate found that the Tribunal's decision was unaffected by jurisdictional error and, consequently, was a privative clause decision. 10 In assessing whether the Tribunal's decision was affected by jurisdictional error, the Federal Magistrate did not confine his assessment to the grounds of review relied upon by the appellant, but he also gave careful consideration to each of the claims which had been considered and rejected by the Tribunal and came to the view that there was no jurisdictional error which attended the manner in which the Tribunal had made its decision. 11 In considering the appellant's grounds of review, the Federal Magistrate noted that the appellant had not been assisted by a lawyer from a referral panel, and said that ground one could not be addressed without production by the appellant of the transcript of the Tribunal hearing and that this ground had not been elaborated on at the hearing before him. 12 The appellant's second ground, about the Tribunal's use of the independent country information, did not amount to more than a difference in opinion with the Tribunal as to its assessment of that report. 13 The appellant did not elaborate upon his third ground and the Federal Magistrate was unable to identify any material element in the appellant's claim that was not considered by the Tribunal. 14 The appellant's amended application set out grounds that disagreed with the factual finding of the Tribunal. The Federal Magistrate stated that it was the Tribunal's legal duty to assess evidence against the legal definition of a refugee and the Federal Magistrate was unable to conclude that the Tribunal made an assessment that was not open to it on the material. 15 The notice of appeal to the Court stated the following grounds: (a) the appellant could not find legal aid to assist him with Court procedures and paperwork; (b) the appellant was not feeling well on the day and could not defend himself, or say much of what he wanted to say to the Court; (c) the appellant believes the Federal Magistrate did not give his case enough study. 16 In his submissions before me today, the appellant has stated that he did not intend to advance arguments in support of his grounds of appeal, but that he had decided to leave the whole matter in the hands of the Court to assess whether, unconstrained by the grounds of appeal, there was any basis for concluding that there was error in the decisions of the Tribunal and Federal Magistrate, and whether there was anything further which could be said or done on his behalf. 17 I have carefully considered the documents in the appeal book, which is before me today, with a view to determining whether there was any basis at all for concluding that either the Tribunal or the Federal Magistrate fell into error. In my view, each of the Tribunal and the Federal Magistrate demonstrated some sympathy with the appellant's position, and applied themselves diligently and scrupulously to the assessment of the appellant's claim. The Tribunal, did not, in my view, fall into jurisdictional error in affirming the delegate's decision; nor could I discern any error in the decision of the Federal Magistrate in dismissing the appellant's application for review. 18 In my view, there is no substance in the appellant's grounds of appeal and there was no error made by the Federal Magistrate. It follows that I must dismiss the appeal with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.